A Georgetown Law professor named David Koplow has drafted what he calls a Nuclear Kellogg-Briand Pact. In an article
proposing it, Koplow does something all too rare, he recognizes some of
the merits of the Kellogg-Briand Pact. But he misses others of those
merits, as I described them in my 2011 book When The World Outlawed War.

Koplow acknowledges the cultural shift that the pact was central to,
that shifted common understanding of war from something that just
happens like the weather to something that can be controlled, should be
abolished, and would henceforth be illegal. He acknowledges the role of
the pact in motivating trials (albeit one-sided trials) for the crime of
war following World War II.

But Koplow also does something that I imagine any U.S. law professor
must be expected to do. I have yet to find one who doesn't. He declares
that the pact "silently" includes language that it does not actually
include, language opening up a loophole for defensive war. While Britain
and France added reservations to the treaty, other nations ratified it
as it is written. The United States Senate Foreign Relations Committee
produced a statement interpreting the treaty, but not actually modifying
the treaty. Japan did the same. That committee statement interprets the
existence of a loophole for defensive war. The pact itself does not
contain it and would not have been created, signed, or ratified had it
done so.

The actual text of the treaty is superior to the United Nations
Charter in not containing two loopholes, one for defensive wars and the
other for UN-authorized wars. And contrary to what Koplow claims, but
consistent with the facts of the matter that he relates, the
Kellogg-Briand Pact is still law. That this makes numerous recent wars
illegal is not so significant, as most -- if not all -- of those wars
fail to fit into the UN Charter's loopholes. But the existence of those
loopholes allows endless claims to legality that muddy what would be
clear waters if we looked to the peace pact instead of to the UN
Charter.

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Of course intent is often taken to override actual text. If the
people who created the pact intended it to silently allow defensive war,
then it allows defensive war, according to this theory. But did they?
That all depends on who counts as being those people. Koplow only
mentions one of them, Senator William Borah. In fact, Koplow drastically
understates Borah's role. Following the lead of the Outlawry movement
and intense lobbying by its leaders, Borah had publicly promoted
outlawing war for years before the pact came up for a vote, and he had
been instrumental in making sure that it did. On November 26, 1927,
Borah had written this in the New York Times:

"I do not think peace plans which turn upon the question of an
'aggressor nation' are workable. An aggressor nation is a delusive and
wholly impracticable proposition as a factor in any peace plan." Borah,
agreeing with the widespread understanding of the Outlawrists, believed
that in any war each side would label the other the aggressor, and that
through ultimatums and provocations any side could make another into the
aggressor. "I would not support a peace plan," Borah wrote, "which
recognized war as legitimate at any time or under any circumstances."
Having learned from the creators of outlawry, Borah tutored Kellogg and
Coolidge, even overcoming the hurdle created by the latter's belief that
outlawing war would be unconstitutional.

But in what exactly did Borah tutor them? Surely not in what appears
to every living U.S. law professor in 2017 utter nonsense or a suicide
pact? Yes, in fact, in just that. And I'm not sure either Kellogg or
Coolidge ever understood it to any greater extent than this: the public
demand for it was a hurricane. But here's what it was, and why those who
come around to praising the Kellogg Briand Pact seem more intent on
burying it. Outlawry was opposed to the entire institution of war on the
model of opposition to dueling -- which, outlawrists pointed out, had
not been replaced by defensive dueling, but by abolition of the whole
barbaric institution. Once you sanction some wars, you motivate
preparation for wars, and that moves you toward wars of all kinds. The
Outlawrists had grasped this even before Dwight Eisenhower had been part
of a chemical weapons attack on World War I veterans in the streets of
D.C., much less made any farewell addresses.

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But if you ban all war, the Outlawrists grasped, you end up
eliminating the need for any war. You organize nonviolent systems of
conflict resolution. You create the rule of law. You mobilize a reverse
arms race. Peace Studies Departments have largely grasped this just in
recent years. Peace activists had it down in the 1920s. And they
insisted on their vision in the treaty that they wrote, that they
negotiated, that they lobbied for, and that they passed -- against the
very will of many of the Senators ratifying it. Si vis pacem, para pacem.
Koplow quotes this inscription from the pen used to sign the treaty. If
you want peace, prepare for peace. That people actually meant that in
1928 is beyond common understanding in 2017. Yet it is down in writing
in both the text of the treaty and the many texts of the movement that
created it. Banning all war was the intention and is the law.

So why should we, as Koplow proposes, create a brand new treaty,
modeled on Kellogg-Briand, but banning only nuclear war? Well, first of
all, doing so would not legally or otherwise cancel the existing
Kellogg-Briand Pact, which is universally ignored by that tiny number of
people who've ever heard of it. On the contrary, creating a nuclear KBP
would bring attention to the existence of the total KBP. Ending all
nuclear war would be a powerful step in the direction of ending all war,
would quite possibly keep our species in existence long enough to do
so, and would point our thinking in just the right direction.

The treaty as Koplow has drafted it would not be in any conflict with
a treaty banning nuclear weapons, but might be a treaty that nuclear
nations would sign and ratify, and it would be stronger than simply a
commitment not to be the first to use nukes. As drafted, the Nuclear
Kellogg-Briand Pact goes beyond mirroring the language of the KBP to
finesse the defensive question and many others. It's well thought out,
and I recommend reading it. Buried toward the end of the draft treaty is
a requirement to accelerate efforts toward total nuclear disarmament. I
think passing such a ban on only nuclear war would actually accelerate
the abolition of all war, and might just do so via creating awareness
that all war has been illegal for 88 years.

David Swanson is the author of "When the World Outlawed War," "War Is A Lie" and "Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union." He blogs at http://davidswanson.org and http://warisacrime.org and works for the online (more...)